The Philippine Claim Over Sabah

A Historical Discourse of the Philippine Claim over Sabah

By Amando Respicio Boncales, B.A., M.S.Ed., M.A., (PhD).

Northern Illinois University

arboncales.niu.edu

May 2013

Historiographical Essay

The Philippine-Malaysian dispute over the State of Sabah remains a contentious diplomatic issue. There is a very limited amount of literature available that discusses this complex issue. The works of Teodoro Agoncillo and Renato Constantino, nationalist historians, discuss the issue. The objective of this study is to shed light on the historical background of the Philippine claim over Sabah by examining how various authors in the field presented the issue.

In 1878, the Sulu sultan entered into a deed of pajak with Austrian Gustavus Baron de Overbeck and Englishman Alfred Dent, who were representatives of a British company. The deed was written in Arabic. In 1946, Professor Harold Conklin translated the term “pajak” as “lease.” The 1878 deed provided for an annual rental. This treaty constitutes the main basis of the territorial dispute between the Philippines and Malaysia over Sabah. The Philippines claims that the term “pajak” means “lease,” while Malaysia claims that it means “cession.”^[1]

 The Philippine claim to Sabah was formally filed in 1961 at The United Nations  during the administration of President Diosdado Macapagal (1961-1965) based on historical and legal claims. President Ferdinand Marcos assumed presidency in 1965. His alleged Jabiddah plan, supposedly proposing the invasion of Sabah, was publicly exposed, bringing the relations of Malaysia and the Philippines into a state of mistrust.^[2]

The first foreign scholar to have extensively analyzed the Philippine claim to Sabah was Michael Leifer, author of the monograph The Philippine Claim to Sabah. It was a major departure from the documents published by the Philippines government because it was the first to put the Sabah issue in its proper historical contest. The paper provides a good background of the Philippine claim to Sabah, although it relies heavily on a two-volume set of documents published by the Philippine government. Leifer also utilizes newspaper articles and books to place the Sabah issue in the context of Macapagal’s presidency.

The author asserts Macapagal envisioned this as a diplomatic gain rather than a political gain.  Macapagal pictured Mania as the center of Southeast Asia, a Mecca where the other Asian countries to flock to on pilgrimage.  He saw this new role as a means to become accepted by the mainstream Asian countries by its stand with Indonesia against United Kingdom backed Malaysia.  He hoped to gain a new respect for the voice of the Philippines, who up until this time had been mostly overlooked, shunned even because of its support of American positions.  They saw their position as both the protagonist and mediator.  Indonesia was perfectly willing to let Philippines take that role.^[3]

              Leifer maintains that the Macapagal approach to the issue more was unbalanced.^[4] Macapagal’s plan to use the Philippines to block Malaysia and establish respect among Southeast Asia was flawed.  The flaw was in his inability to see the contradictions of his policy.  Maphilindo, was meant as an alternative to Malaysia and should have been an alliance among the states, bonded over their fear of the Chinese and their desire to expand.

For Malaysia, however, the Chinese community is not an insignificant numerical minority without domestic political import. Thus, to accept the implications of Maphilindo was to invite alienation on the part of the Malaysian Chinese.^[5] 

In 1969, the year after Leifer’s book was published, under the auspices of the National Historical Commission, the Philippines organized a conference on Sabah. The proceedings were published in a book titled Symposium on Sabah. One of the important chapters within the book is that of Prof. Rolando N. Quintos, who suggests alternatives for the solution of the Sabah dispute in his chapter, “The Sabah Question: Prospects and Alternatives." Quintos offers some provocative ideas and argues that the issue of Sabah should be seen in its two aspects: First, the legal issue in regard to the proprietary rights of the heirs of the Sultanate; and second, the question of political jurisdiction over Sabah. Quintos proposed a compromise deal, arguing further that "the Philippines [shall] accept the justice of the Malaysian appeal to self-determination and accept as final the conclusion of the U.N. Secretary General the United Nation of September 1963, provided that the Malaysians are willing to submit the issue to the World Court or to a mutually acceptable mediating body.”^[6]

              The work of a Malaysian, Mohammed bin Dato Othman Ariff, The Philippine Claim to Sabah: Its Historical, Legal and Political Implications, extensively discusses the legal issues surrounding the claim. The main thesis of this book is to discredit the legal basis of the Philippine claim to Sabah. The author emphasizes the legal foundation of the United Kingdom’s claim to Sabah based on possession and consolidation through peaceful and continuous display of State activities.

              Furthermore, Ariff illuminates the basis for the integration of Sabah to Malaysia through the principle of self-determination.^[7] On September 16, 1963 after a four-month referendum on Sabah and Sarawak, the Cobbold Commision report was presented to the British government joining Malaya, Singapore, Brunei, Sarawak and Sabah (North Borneo) to form Malaysia; this after just a month of Sabah’s gaining it’s independence.^[8] United Borneo Front chairman Jeffrey Kitingan disputes the referendum in which Prime Minister Najib Tun Razak and other’s claim that Sabahans’  desire to be part of Malaysia. “There has never been a referendum on Sabah as stated by some academics.  In fact, the so-called referendum in 1962-63 was actually only a sampling survey of less than four percent of the Sabah population,” he said.^[9]

Finally, Ariff argues that the peaceful settlement of the dispute would require the Philippines to drop the claim and concentrate all of its efforts in working closely and cooperating with Malaysia in the context of Association of Southeast Asian Nation ASEAN.^[10] For the heirs of the Sultan of Sulu, given their established proprietary rights in 1931 through the North Borneo Court, this kind of suggestion is unacceptable.

              Another non-Filipino scholar, S. Jayakumar, who is from the University of Singapore, also argues that the Philippine case is weak. Like Ariff, Jayakumar invokes the idea of effective occupation on the part of the United Kingdom in Sabah since 1878, which granted the British North Borneo Company a charter of corporate character. The author contends that the Philippine claim is abstract and vague, based only on historically derived rights of the heirs of the Sultan of Sulu. Jayakumar further argues that neither the Philippines nor the heirs of the Sultan have exercised sovereignty or been in effective occupation of Sabah since 1878. Also like Ariff, the author emphasizes the effective occupation of Sabah by the United Kingdom. Therefore, Malaysia, as the successor state, is now the legitimate sovereign of Sabah. Like Ariff, Jayakumar emphasizes the principle of self-determination.

In Sulu and Sabah: A study of British policy toward the Philippines and North Borneo (1978), Nicholas Tarling, an 18th century historian postulates British policy going back as far as the 18th century and continuing until 1903 was the context for Sulu and Sabah.  In direct opposition to Tregonning’s assertion, Tarling claims the 13 Protocol of 1885 did not necessarily inherit the Sulu Sultanate’s sovereignty over Sabah. He acknowledges the 1878 agreement between the Sultan of Sulu and Baron Van Oberbeck was a lease rather than a cession. He does however agree with Quintos that a continuation of the lease in perpetuity could very well be the solution to the ongoing dispute.^[11]

Under the agreement known as “The Madrid Protocol of 1885” Spain is limited in its influence in the region including relinquishing all rights to Borneo. This agreement between Spain, Germany and Great Britain requires Spain to renounce all claims of sovereignty over the territories of Borneo that had belonged to the Sultan of Sulu.  It also renounced sovereignty that were made of up of the islands of Balambangan, Banguey, and Malawali along with everything within three maritime leagues from the coast and the territories that formed the “British North Borneo Company.”^[12]

One of the scholars in political science who has done considerable work on the Sabah issue was Lela Garner Noble, author of the book Philippine Policy Towards Sabah: Claim to Independence. The author argues that the Philippine foreign policy on the Sabah issue during the time period from Macapagal through Marcos was evidence of Philippine’s desire to be seen as independent from outside forces, most specifically the United States.  They wanted to improve what many Filipinos felt was an embarrassing image as a puppet of the United States.  The claim to Sabah demonstrates an independent policy because the policy was “non-American in conception or direction.”^[13]

Like most scholars who examined the Sabah issue, Noble, Sussman, and Leifer view the issue as a political question, and none of them consider the issue in a historical way. Although Leifer did provide considerable background material about the Sabah issue in his research, he still saw it as largely a contemporary political angle. The authors mentioned above do not discuss the historical background and instead concentrate on contemporary political issue only.

              As one may recall, both Ariff and Jayakumar disagree with the Philippine case. Regarding the transfer of sovereignty from the British North Borneo Company to the British Crown of Sabah in the 1878 Deed of Lease, the Philippine government takes the position that it was illegal and "an act of naked political aggrandizement." Hence, the transfer of sovereignty from the British Crown to the Federation of Malaysia of Sabah was unwarranted.

Paridah Abd. Samad and Darussalam Abu Bakar in "Malaysia-Philippine Relations: The Issue of Sabah,” published in 1992, emphasized the bilateral relations between the two countries. The paper presented sub-themes such as (a) the political and security repercussions of the Sabah dispute with regard to the Moro secessionism in the south, (b) the overlapping of territorial boundaries, (c) Malaysian incursion into Philippine waters, and (d) the issue of Filipino refugees and illegal immigrants in Sabah from the Macapagal to the Aquino administrations.^[14]

The Philippines has nothing to lose by preserving the status quo in Sabah.  Their inactivity comes at a price of missed opportunities.  However, Malaysia stands to benefit from the treasures of Sabah and its waters.  Though the price of the status quo is negligible, this non-resolution of a claim by the Philippines would be a stumbling block to the intra-ASEAN cooperation.

Malaysia is fully supported by Great Britain and the Commonwealth of Nations in rejecting the claim, while the Philippines has literally no international support. Even the United States, Philippine’s biggest ally had assumed a neutral position. Though the other ASEAN countries appeared to distance themselves from the issue so as not to take sides between two of their members, privately acknowledged Malaysia’s rights to the territory.^[15]

Malaysia asserts that it has honored its financial obligations and is prepared to negotiate directly with the Sulu heirs without Philippine intrusion. They assert this matter is between them and the heirs of the Sultan of Sulu. In fact the descendants of the Sultan receives M$5,000 ($2,008 US) every year as part of the cession of the area leased to the British Company in the 19th century.^[16]

              Arnold M. Azurin’s Beyond the Cult of Dissidence in Southern Philippines and Wartorn Zones in the Global Village (1996) devoted Part Two to the Sabah issue. Azurin argues in favor of dropping the Philippine claim, except the proprietary rights of the heirs. The various treaties signed by the Sulu Sultan since the 18^th century followed a historical pattern of ceding and leasing certain portions of the sultanate’s dominion to outside powers, depending on the rise and ebb of its own fortunes and powers relative to that of the contracting parties. “Unfortunately, those contending parties had in mind to transform the 'franchise' into a lasting colonial dominion.”^[17] Malacanang should have thought in the 1960s that to claim ownership of a piece of land through Torrens Title is one thing, while claiming dominion or sovereignty over a vast territory is another.^[18]

Another work that has a fresh interpretation of the issue is Asiri Abubukar’s “Bangsa Sug, Sabah and Sulus' quest for Peace and Autonomy in Southern Philippines” (2000). The author asserts that there exists a continuing sense of identification and affiliation among the Sulu people with Sabah. Because of the strong sense of connection and affiliation to Sabah among the people in Sulu, Abubakar argues that settling the Sabah issue is vital to peace process in the southern Philippines, particularly in the quest for autonomy by the Sulu people. The identification, connection, and affiliation of the Sulu people with Sabah is through the defunct Sulu Sultanate; the influx of Filipino immigrants to Sabah further reinforces the connection.^[19]

      Another factor that Abubakar pointed out is that the strategic location for trade of the Sulu-Sabah area since the height of the Sulu Sultanate will continue to be significant as part of the Brunei, Indonesia, Malaysia, Philippines-East Asian Growth Area (BIMP-EAGA). The author believes the Sabah issue is intertwined with the Moro problem in Mindanao.^[20] He postulates that resolving the Sabah issue would indeed move Southern Philippines closer to a lasting peace. 

For the most part of the Sabah issue, it is the 1878 deed that causes the most contention among various academics. Tarling maintains that the “territory was held by the Company under a lease agreement, and this the British Government should admit.”^[21] However, he believes that the Philippine government cannot “inherit the sultanate’s sovereignty over North Borneo” under the protocol of 1885. His recommendation is the continuation of the lease in perpetuity.^[22]

A History of modern Sabah: 1881-1963 (1960), written by historian K. G. Tregonning, analyzes the Sabah issue that the agreement in 1878 between the Sulu Sultans and Baron Van Overbeck was one of a cession not a lease; furthermore, several treaties and international conventions have excluded North Borneo from the territory of the Philippines.^[23]

Arrif’s The Philippine Claim to Sabah: Its Historical, Legal and Political Implications has a strong pro-Malaysian sentiments and maintains that the agreement of 1878 was a “Deed of Cession.”^[24] Instead, he recommends that given the close historical ties between the peoples of the Philippines and North Borneo, both Malaysia and the Philippines should maintain and promote healthy relations to ensure the security of the region. The adaption of this “formula” would require the Philippines to drop its claim and concentrate all of its efforts on working closely with Malaysia.^[25]

Leifer’s The Philippine Claim to Sabah clarifies that the focus of his study is the political and non-legal aspect of the presentation of the Philippine claim. However, he recognizes that the predecessors of the British North Borneo Company (BNBC) were private lessees of the Sultan of Sulu, and in effect cannot acquired dominion over a territory through a contract, also known as Pajak of 1878. The BNBC was barred from acquiring sovereignty by its private status and by the terms of its charter.^[26]

International law provides for the lease of a territory in which a state grants another state the right to control at least part of the lessor’s territory.  Once the territory is leased the sovereignty remains with the lessor and not under its jurisdiction which is granted to the lessee.  The lease of the territory is usually given in exchange of an annual fee.^[27]

After examining the existing literature regarding the Philippine claim, I believe that the Philippine claim to Sabah is valid, with strong historical roots. It is my opinion, like those of Tarling and Tregonning, that the Deed of 1878 is not a transfer of sovereignty, but a lease granted by the Sultan of Sulu to British subjects; a private venture. In this historiographical essay, I observe that the Sabah issue is a post-colonial symptom that needs to be treated to achieve lasting peace in this part of Southeast Asia, an opinion shared with Azurin’s Beyond the Cult of Dissidence in Southern Philippines and Wartorn Zones in the Global Village.

Historical Foundation

The rise of Islam in Southeast Asia revolutionized specific social institutions in the region. Islam as a politico-religious institution had triggered the modification and introduction of social institutions that shaped present day Southeast Asia. Among the most important developments was the introduction of the sultanate (a developed political and at the same time religion institution) to the region. For the purpose of this research, my study will focused on the development of the Sulu sultanate as part of the greater Malayan world and the eventual claim of the Philippines to Sabah (as the political successor at sovereignty of the Sulu Sultanate).

The objective of this study is to trace the historical and legal basis of the Philippine claim over the State of Sabah. The methodology of the study will be thematical not chronological. Instead of being conscious of the timeline, the study will concentrate on the major themes that shaped the sultanate’s Sabah dominion, lease and agreements with western world and the present claim of the Philippines to the Sabah State. The words “North Borneo,” “British Borneo” or “Sabah” are used interchangeably in the study. These words are used to that portion of the North Borneo Island to which the sultan of Sulu once ruled.

Available historical records seem to indicate that the dispute territory was a possession of the Sultan of Sulu which evidently was leased to the founders of a British chartered company. With protection of the crown guaranteed over the lease territory, later became the foundation British annexation and colonization. Eventually, Sabah was included in the federation of Malaysia.

The foundation of the Sultanate of Brunei and Sulu

              The sultanates of Sulu and Borneo were well established political entity in the Malay world during the late 15^th and 16^th century. The Arabs, who had settled in Malacca in 1400, did not extended political control over the two sultanates other than spreading the teaching of Islam. The Chinese did the same who frequented the areas held by the two sultanates to trade with the natives.

The sultanate of Sulu was founded in 1380, nearly one and a half century before the arrival of the Spaniards in the Philippines. The sultanate possessed an efficient political organization, extending its influence in Zamboanga, Basilan, Palawan, aside from the Sulu archipelago.^[28] During its supremacy, the sultanate extended its control as far as the Visayas and Luzon until controlled by the Spanish conquistadores in the Philippines. For many years to come, as the colonial government consolidated it territory, the sultanate was to remain a problem by the Spanish and American colonial government (viewed as pirates and buccaneers).^[29]

The Sultanate of Brunei, on the other hand, was founded in the 15^th century. For a brief period, it became a tributary of the Majapahit Empire.^[30] Before the British entry in to the region, the sultanate exercise nominal control over the whole northwestern and eastern coast of the island.

Related by its common Malay origin, the two sultanates were bounded together by religious ties with the spread of Islam in the Malay world. Trade between their respective subjects served to reinforce this relationship even more.

Borneo and the Western World

              The Portuguese and the Spaniards, in search of spice, were the earliest among the westerners to arrive in the East Indies and establish themselves in Malacca early in the 16^th century. British interest in the Sulu-Borneo area stemmed primarily from the East Indian Company’s desire to establish a factory.^[31] The head of this particular project was Alexander Dalrymple, who, in January 1761, negotiated a Treaty of Friendship and Commerce with the Sultan of Sulu. The agreement was confirmed by another treaty in February 1763 reiterating the major provision, emphasizing defense alliance.

              But the company appeared unable to take advantage of this concession. When it finally decided, in 1769, to occupy Balambangan and made use of the ceded territory, disease and strained relations with the Sultan of Sulu erupted that led to open war, hence preventing the development of the enterprise. The Balambanagn settlement was abandoned in 1775 until a second attempt was made in 1803, which again was abandoned in 1805.

              Under the Act of 1858, the East Indian Company was dissolved and its interests were transferred to the crown. However, evidence seems to suggest that the territories ceded by the Sulu failed to interest the British government further. Lord Canning, as the first viceroy to British India, repudiated the “doctrine of lapse” and was further enunciated by his predecessor (the Earl of Derby).  The Earl of Derby, in explaining to the British Ambassador in Germany the nature of Spanish claim to North Borneo:

It should be mentioned that previously to 1836 Spain claimed the island on the ground of first discovery, ancient treaties, and alleged occupations; but those claims were never admitted by Great Britain. . . . Great Britain also had rights under Treaties with Sulu, dated 1761, 1764, and 1769, BUT those treaties must be considered as having lapsed.^[32](Emphasis added)

              Almost two decade before the dissolution of the East Indian Company, an Englishman named James Brooke^[33] visited Sarawak, and shortly after was offered by the Sultan of Brunei the governorship of Sarawak in exchange for aid in the face of continuing rebellion. Later in 1841, Brooke was proclaimed Rajah and in subsequent years, he succeeded in minimizing piracy in Sarawak, Brunei, and North Borneo with the cooperation of the British Navy. The involvement of Brooke made him “the supreme ruler of Sarawak or the White Rajah.”^[34]

              In 1846, the British flag was raised on Labuan Island off the cost the east coast of Sabah.  And in the following year, Great Britain and Brunei the concluded a Treaty of Friendship and Commerce, at the same time that Labuan was ceded in perpetuity to the crown.

              The United States became similarly attracted to Borneo, eager of obtaining the favors that had been secured by other western powers. In 1850, a treaty was signed for the United States advantages for the most favored nation, and later an American consul was appointed to Brunei. Borneo-Sulu area became increasing attractive in terms of commerce for its strategic location in the region, especially maritime traffic.

Brunei’s Cession of Sabah to Sulu.

              Although wealthy, the Sultan of Brunei had a court that was corrupt and ridden with intrigues. Consequently, the sultan found difficulty in extending control to many of his datus throughout the domain, rebellion and strife was frequent in the sultanate. It was under this circumstances that the territory, comprising most of what is now Sabah State, was ceded to the neighboring sultanate as the prize for military assistance.

              The murder of the 12^th Sultan of Brunei, Muhammad Ali, by Bendehara Abdul Mubin resulted to civil war. The perpetrator claimed the throne but was contested by Pengeran Bongso, a nephew and son-in-law of the deceased sultan. Both contestants to the throne asked the support of Badarud-din, a relative of both and the reigning Sultan of Sulu. Badarud-din was unable to solve the crisis, but supported Pengeran Bongso (who took the name Sultan Muaddin).  Sultan Muaddin emerged victorious and the large territorial land known today as “the State of Sabah” was ceded to the Sultanate of Sulu in exchange of the military help and support.

              The observation of the contemporary British officer will give us more insight of the territory ceded:

The first material alteration in the sovereignty of the territorial possession took place in the kingdom of Borneo Proper, when his Raja was obliged to call in the aid of the Solos to defend him against an insurrection of the Maruts and Chinese. In consideration of this important aid, the Raja of Borneo Proper ceded to the Sultan of Solo all that portion of Borneo then belonging to him, from Kimanis in latitude 5° 30’ north to Tapean-durian, in the straits of Macassar, which include the whole north of Borneo.^[35]

The sultanate’s connection with Northern Borneo goes back as early as 1521, as far as the written record is concerned, when a Brunei Sultan was married to a Sulu princess. This early connection between the two sultanates cemented the familial relationship. This political marriage developed into a politico-military allegiance.

              Meanwhile, as trade flourished in the region, the mercantilist policies adapted by the colonial powers deprived the Sultanate of Brunei and Sulu of their own profitable commercial activity. Thus driven into piracy and smuggling, the Sulus and the Bruneis continually menaced western trade, presenting a problem that was to persist for many years.

Territorial Grant from Brunei

              Baron von Overbeck, Austrian Consul-General at Hongkong at that time, convinced Dent in supporting a venture in Sabah and together they planned to sell their rights to any interested government.^[36] With the money he received from Dent to conduct negotiations, the baron sailed to Brunei. He succeeded in persuading the Sultan, who presumably could not resist the tempting compensation offered. On December 29, 1877, the sultan entered into agreement with von Overbeck, in which the latter gained three territorial “grant” and for which the sultan received a total annual payment of 12, 000 Malayan Dollars.   In addition the sultan appointed von Overbeck “supreme ruler” with the title of “Maharajah of Sabah and Rajah of Gaya and Sandakan,” with delegated powers to govern the territory. ^[37]

The Baron, however, evidently realized that several factors tended to depreciate the value of the grants he had obtained. This is because more than a century and a half earlier the territory had already been ceded to the Sultan of Sulu who was in actual possession. Moreover, Brunei chiefs refused to recognize the Sultan of Brunei’s rights to cede the territory.^[38]

              Von Overbeck, aware of the Sultan of Sulu’s dominion in North Borneo, found it necessary to entered into negotiation with the sultan for the lease of the territory. Overbeck and William W. Treacher, the Acting British Consul-General at Labuan Island in Borneo, went to Sulu in January 1878. The contract dated January 22, 1878, was drafted by Overbeck himself and was written in Malayan language with Arabic character.

Territorial Lease from Sulu.

              From Labuan, Baron von Overbeck, Joseph W. Torrey, and William Clark Cowie sailed to Jolo on board the steamer, America, arriving at their destination on January 16. Consul Treacher also reached Jolo on the same day, having sailed separately on the British Warship, Fly.

              Von Overbeck and his companion were shrewd negotiators and their combined effort brought to bear on the sultan, already hard-press by an ongoing campaign in Sulu, was hardly in a position to refuse. During the bargaining, Cowie, whom the sultan had great confidence as a gun-smuggling partner, contributed his own persuasive influence after having been led to believed that von Overbeck would reward him.^[39]

              Treacher, whom the sultan consulted, said that Overbeck represented “a bona fide British company,” and intimated to the Sultan that the Spanish Captain-General himself was at the head of the expedition already in Zamboanga poised and ready to destroy Jolo; and that the Sultan of Brunei had recently ceded to them the territory and was already to take possession of it anyway. ^[40] Evidently a lease of the sultan’s possession in Sabah, its pertinent provisions read thus:

We Sri Paduka Maulana Al Sultan Mohammad Jamalul A’lam, son of Sari Paduka Marhum Al Sultan Mohammad Pulalum, Sultan  of Sulu and of all dependencies thereof, on behalf of ourselves and for our heirs and successors, and with the expressed desire of all Datus in common agreement, do hereby desire to lease of our own free will and satisfaction, to Gustavus Baron de Overbeck of Hong Kong, and to Alfred Dent, Esquire, of London, who act as representatives of a British company, together with their heirs, associate, successors, and assigns forever and until the end of time, all rights and powers which we possess over all the territories and lands tributary from the Pandasan River on the east, and thence along the whole east coast as far as Sibuku  on the South, and including all territories, on the Pandasan River and in the coastal area, known as Paitan, Sugut, Banggai, Labuk, Sandakan, China-Batangan, Murniang and all other territories and coastal lands to the south, bordering on Darvel Bay and as far as the Sibuku River, together with all the lands which lie within nine miles from the coast.

              The cession (as the Malaysian prefer to interpret it) or lease (as the Sulu Sultanate maintain) of Sabah to the British began in the Treaty of 1878 between Baron de Overbeck and His Highness the Sultan Jamal Al-Alam was signed for an annual payment of 5,000 Malayan dollars. 

It should be noted that Consul Treacher succeeded in formalizing the participation of his government in the agreement, by affixing the participation of his government in the agreement, by affixing his signature as a sole witness to the transaction. Unlike in the Brunei grants of the previous year, Treacher’s recommendation were accepted by the Sulu Sultan, namely, that the “consent” of the British government would first be obtained before any transfer of territory and that its “consideration and judgment” shall be sought in event of any dispute.

Together with the Territorial Agreement, the sultan also appointed von Overbeck as “supreme and independent ruler” with the title of “Datu Bandahara and Rajah of Sandakan,” delegating him as a vassal power with which to administer the territory. However, the sultan made it clear that Oberbeck made the title not him.^[41]

The Philippines Claim over Sabah and its Arguments.

It is the thesis of the Philippine government that the contract of 1878 was a lease, and not a transfer of ownership or sovereignty. Treacher, who was present at the signing of the contract and as witness, characterized the contract as a lease and referred to the money payment as annual rentals.

Diosdado Macapagal, who served in the Department of Foreign Affairs in 1946 and later became President of the Philippines, advocated filing a claim at the United Nations.  The filing took place on June 22, 1962.  They claim sovereignty, jurisdiction and proprietary ownership of North Borneo.  The Philippines claim they have the legal and historical rights to North Borneo as the successor-in-interest of the Sultan of Sulu.

In the early part of the 1960s it became an imperative for the Philippines, aside from the strong historical and legal rights that North Borneo is important to Philippine territory and vital to its security. At this time (1960’s), communism in the region was in its height and Philippines were anxious that Malaya would succumb to the potent communist threat from mainland Southeast Asia, creating a scenario in which a communist territory would be immediately at the southern frontier of the Philippines.^[42]

Philippine anxiety on the communist threat has subsided, but another form of menace developed. From the dynamics of the Muslim separatist movement in the south, there evolved a more terrifying threat. The Sabah state of present Malaysia harbored some of the kidnappers, Abu Sayyaf and Al-Quedah, provoking international concern through widespread violence, state wide terror and their vision of establishing independent states.

The British North Borneo Company based its rights from the grant signed in January, 1878. In it, the sultan of Sulu granted certain concessions and privileges to Baron de Overbeck, an Austrian national who was at the time the Austrian Consul-General at Hongkong, and Alfred Dent, a British national, in consideration of an annual rent or tribute of 5,000 Malayan dollars. Dent later bought out Overbeck, and transferred his rights to the British North Borneo Company. The Company was granted a Royal Charter on November 1, 1881.

The Philippine government argues that Overdeck and Dent (the leasors) did not acquire sovereignty or dominion over North Borneo. This is because, according to international law, sovereignty can be ceded only to sovereign entities (e.g. government to government agreement) or to individuals acting for sovereign entities (agreement between leaders of nations). Obviously, Overbeck and Dent were private citizens of their respective countries who did not represent any sovereign entities, but instead acted as mere businessmen who only acquired grant of lease from the Sultan of Sulu. Hence, neither of them did not, and could not, acquire sovereignty or dominion.^[43]

The above letter was written by the British Foreign Minister to explain and respond to the Spanish protest regarding the grant of Royal Charter to the British North Borneo Company. It was not the Spanish crown which made the protest alone; the Dutch government also protested in the same way. Again, Lord Granville maintained in his letter to the Dutch that the British North Borneo Company was a mere administrator, and that the “British Government assumed no sovereign rights whatever in Borneo.”^[44]
              The Philippine government, therefore, strongly argues that the transfer of rights, powers and interest by the British North Borneo Company to the British Crown was not possible. North Borneo Cession Order of 1946 took place just six days immediately after the Philippines was declared independent by the United States. In the International Law, a transferee (British Crown) cannot acquire more rights than the transferor (British North Borneo Company). In other words, how can the British Crown exercise sovereign rights in the form of protectorate in 1946, when the British North Borneo Company did not exercise nor assume sovereignty over North Borneo? In other words, how can the British North Borneo Company transfer sovereignty to the British Crown, which the company did not have in the first place?

              It has been said that President Manuel L. Quezon of the Commonwealth of the Philippines (the transitional, semi-autonomous government of the Philippines under American sovereignty which preceded the independent republic) “had decided not to recognize the continued existence of the Sultanate of Sulu, particularly in reference to North Borneo.” The Philippine Department of Foreign Affairs was not able to find a written record of this statement. This pronouncement was against the Organic Law of the Philippine Commonwealth, since the power to give and terminate recognition during the Commonwealth Philippines was vested only in the Congress of the United States of America (being the colonial power). Aside from the political technicality, International Law dictates that any withdrawal or termination of recognition does not imply the dissolution of the entity affected by the withdrawal.^[45]

The Philippine government believes that Dent, who was granted a Royal Charter in the form of British North Borneo Company by the British government, to which the British Crown derived its claim of sovereignty, was not authorized to acquire sovereignty or dominion. Evidence to this was the official correspondence of Lord Earl Granville, British Foreign Minister at the time, in his letter to the British Minister in Madrid dated January 7, 1882, explaining the character of the Charter Grant of the British North Borneo Company, as follows:

The British Charter therefore differs essentially from the previous Charters granted by the Crown to the East India company, the Hudson’s Bay Company, the New Zealand Company, and other Associations of that character, in the fact that the Crown in the present case assumes no dominion or sovereignty over the territories occupied by the company, nor does it purport to grant to the Company any powers of government thereover; it merely confer upon the persons associated the status and incidents of a body corporate, and recognizes the grants of territory and the powers of government made and delegated by the sultan in whom the sovereignty remains vested…As regards the general feature of the undertaking, it is to be observed that the territories granted to the Company have been for generations under the government of the Sultan of Sulu and Brunei, with whom Great Britain has had Treaties of Peace and Commerce.^[46] [Emphasis Added]

The British Foreign Minister writes this letter to explain and respond to the Spanish protest regarding the grant of Royal Charter to the British North Borneo Company. It was not the Spanish crown who made the protest alone; also the Dutch government protested. Again Lord Granville maintains, in his letter to the Dutch, that the British North Borneo Company was a mere administrator, and that “British Government assumed no sovereign rights whatever in Borneo.”^[47]

The Philippine government, therefore, strongly argues that the transfer of rights, powers, and interest by the British North Borneo Company to the British Crown, known as North Borneo Cession Order of 1946 (that took place six days immediately after the Philippines was declared independent by the United States), was not possible. In the International Law, a transferee (British Crown) cannot acquire more rights than the transferor (British North Borneo Company). In other words, how can the British Crown acquire sovereign rights (in the form of protectorate in 1946), when the British North Borneo Company did not exercise nor assume sovereignty over North Borneo? Again, since Overbeck and Dent did not acquire rights of sovereignty or dominion over North Borneo their transferee (British North Borneo Company), also, did not acquire rights of sovereignty or dominion.

The 1930 Convention between the United States and Great Britain and its implication to the Philippine Sabah Claim

Under the Carpenter Agreement of 1915, the Sultan of Sulu agreed to relinquish its temporal power over Sulu but retained his sovereignty over North Borneo. As Governor Carpenter clarified in this communication to the director of the Non-Christian tribe on May 4, 1920, as follows:

It is necessary however that there be clearly (sic) of official record the fact that the termination of the temporal sovereignty of the Sultanate of Sulu within American territory is understood to be wholly without prejudice or effect as to the temporal sovereignty and ecclesiastical authority of the sultanate beyond the territorial jurisdiction of the United States Government especially with reference to that portion of the Island of Borneo which as a dependency of the Sultanate of Sulu is understood to be held under lease by the chartered company which is known as the British North Borneo Company. ”

The American Governor General of the Philippine Island Francis B. Harrison made it more clear that:  “It is true Governor Carpenter’s contract or treaty with the Sultan of Sulu of 1915 deprived the Sultan of his temporal sovereignty in the Philippine archipelago but did not interfere with the Sultan’s status of sovereignty over British North Borneo lands.”^[48]

              It is in the context of this statement that the 1930 Convention between the United States and Great Britain defined their respective boundaries. The United States did not intend to claim North Borneo.  By this act of defining the respective boundaries, the United States did not cede or waive anything to the British Crown.

Submission of the Sultan of Sulu of the Sovereignty of Spain 1851 and Protocol of 1885

              Spain’s claim to North Borneo is based on the fact the sultanate “admitted herself a vassal of Spain on the basis of this treaty Spain was claiming all the possessions of Sulu and North Borneo.”  However, this is not necessarily as it seems.  The fact is North Borneo was not included in the former treaty.  The British government did not recognize the Spanish claim.  In a Protocol of Peace between Spain, Germany and Great Britain signed March 7, 1885 Spain gave up its claims of sovereignty over North Borneo to Great Britain leading to British claim of sovereignty since then.^[49]

              The document signed by the sultan in 1878, recognizing Spanish sovereignty over “Jolo and its dependencies,” had no mention on the inclusion of the sultan’s territory in North Borneo. It is important to first clarify that Spain never acquired sovereignty over North Borneo.  In the protocol signed, the term “pretension” to sovereignty over North Borneo was used; hence Spain did not transfer sovereignty to Great Britain (a sovereignty Spain never had; it was merely a pretension). Second, “Jolo and its dependencies” was a geo-political unit different and distinct from the North Borneo possession. To give a more vivid example for this argument, let us try to examine Spanish geo-political units in its Asian positions, known as “Espana Oceanica:”^[50]

1.     The Philippine Archipelago proper;

2.     The Island and archipelago of Jolo, conformably with existing treaties with the Sultan of Sulu;

3.     The portion of Northeast cost of Borneo that forms part of the dominion of the Sultan;

4.     The Marianas Islands; and

5.     Other territories which now belong or which may belong in the future to Spain.

North Borneo was not considered a dependency of Jolo. As shown in the list of “Espana Oceanica,” North Borneo was a geo-political unit different and distinct from the Archipelago of Jolo. It is clear that the sultan did not include his territory and dominion in North Borneo in signing the treaty recognizing the Spanish sovereignty. Another thing to consider was the Spanish Geo-political division in “Espana Oceanica.” In the Spanish geo-political law, the regulations were clear about that.^[51]

The signing of the sultan in 1885 recognizing Spanish sovereignty over “Jolo and its dependencies” did not transfer sovereignty to Great Britain.  In the protocol of peace between Germany, Great Britain, and Spain, it was clearly stated that the Spanish claim of sovereignty was worded in the text as “pretension.”  By this, it did not result in transfer of sovereignty from Spain to Great Britain.  Therefore, the contention that Spain’s renunciation of sovereignty over its North Borneo territory in favor of Great Britain that resulted in transfer of sovereignty from the Sulu Sultanate to Great Britain is incorrect. 

Macaskie Dictum of 1939

In a 1939 case the heirs of Sultan Jamalul Kiram claimed money was owed to them under the 1878 grant.  They were awarded a “cession of right” by the High Court of North Borneo.  Nine heirs of the Sultan of Sulu won the award in the Macaskie Judgment.  Charles Frederick Cunningham Macaskie was the presiding chief justice^[52] The ruling was made on the shares entitled by each claimant. ^[53]

The issue before the court was the identity of the heirs of the sultan who were entitled to receive payments after his death.  Through their attorney, they had the only an English translation by Maxwell and Gibson, a translation of the Grant of 1878 that incorrectly characterized this as a cession instead of a lease.  A later translation made it clear that this was an incorrect translation.

It should be recalled, that the Grant in 1878 is in Arabic script and is worded in the Malayan language.  When the lawyer of the heirs filed the case, he had no original copy of the Grant. The erroneous Maxwell-Gibson translation was the one used, quoted, and paraphrased in the complaint filed by the attorney for the heirs of the Sultan.  Years after the Macaskie dictum was made (which translated the Grant as cession instead of lease), the Philippine government had the copy translated into English. According to the result of the translation, the Grant of 1878 was a Lease Agreement. Under this circumstance, the Philippine Government could not accept the dictum of Judge Macaskie.  In the judgment, the Grant of 1878 was viewed as a permanent cession or sale, and that the money that was to be paid to the heirs is “cession money.”^[54] 

The former United States Governor General of the Philippine Islands, Francis Harrison repudiated the Macaskie judgment stating, “Upon examination of our own translation of the original document (in photostat) it will be seen that Maxwell and Gibson, the English authors on whose text the decision of Mr. Justice Mackaskie was based, have changed the language so as to make the document a grant cession instead of lease, as it really was, and as the word “padjak” in the original really means. In view of this vital divergence from the original text, I do not find myself able to give full faith and credit to the opinion of Mr. Justice Mackaskie in the famous case in 1939 in Sandakan.”^[55]

In a letter addressed to Vice President and Secretary of Foreign Affairs Elpidio Quirino, dated February 27, 1947, Harrison explained that:

In reviewing the subject of the claims of the Sultanate of Sulu to their ancient patrimony in North Borneo, one must come to the conclusion that the action of the British Government in announcing on the sixteenth of July [the annexation of North Borneo to the British Crown], just twelve days after the inauguration of the Republic of the Philippines, a step taken by the British Government unilaterally, and without any special notice to the Sultanate of Sulu, nor consideration of their legal rights, was an act of political aggression which should promptly be repudiated by the Government of the Republic of the Philippines.^[56]

To conclude, the Malaysian claim to Sabah, based on the British claim, is not sustainable.  The territory was only leased as the British North Borneo Company and not ceded as the Great Britain, and later Malaysia, have claimed.

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Appendix

---

^[1] Senator Miriam Defensor-Santiago, “Sabah Issue In International Law,” News, Philippine Daily Inquirer, March 23, 2013, http://opinion.inquirer.net/49361/sabah-issue-in-international-law.

^[2] Erwin S. Fernandez, “Philippine-Malaysia Dispute Over Sabah.” Asia-Pacific Social Science Review, vol. 7, no. 1 (2007) : 53.

^[3] Michael Leifer, The Philippine Claim to Sabah (Ag Zug: Inter Documentation Co., 1968), 48.

^[4] Ibid., 73.

^[5] Ibid., 73, 74.

^[6] Fernandez, “Philippine-Malaysia Dispute Over Sabah,” 683-84.

^[7] M. O. Ariff, The Philippines Claim to Sabah: Its Historical, Legal and Political Implications (Singapore: Oxford Univ. Press., 1970), 64.

^[8] BERNAMA, “LAHAD DATU: Historians Agree Sabah Rightfully Belongs to Malaysia,” March 6, 2013, News, http://www.nst.com.my/latest/font-color-red-lahad-datu-font-historians-agree-sabah-rightfully-belongs-to-malaysia-1.229872.

^[9] FreeMalaysiaToday.com, “There Was No Sabah Referendum,” March 8, 2013, https://www.freemalaysiatoday.com/category/nation/2013/03/08/there-was-no-sabah-referendum/.

^[10] Ariff, The Philippine Claim to Sabah, 64.

^[11] Nicholas Tarling, Sulu and Sabah: A study of British policy toward the Philippines and North Borneo (Kuala Lumpur: Oxford University Press, 1978), 127.

^[12] “PROTOCOL OF 1885,” http://www.lawnet.sabah.gov.my/Lawnet/SabahLaws/Treaties/Protocol(Madrid).pdf.

^[13] Lela Gamer Noble, Philippine Policy Toward Sabah: a Claim to Independence (monograph No 33) (Tucson, Ariz: Assn for Asian Studies Inc, 1977), 8.

^[14] Paridah Abd. Samad and Darussalam Abu Bakar in "Malaysia-Philippine Relations: The Issue of Sabah,” Asian Survey 32 (June 1992): 554.

^[15] Ibid., 566.

^[16] Ibid., 554-67.

^[17] Arnold Molina Azurin, Beyond the Cult of Dissidence in Southern Philippines and Wartorn Zones in the Global Village (Quezon City: UP Center for Integrative and Development Studies and University of the Philippines Press, 1996), 107.

^[18] Ibid., 113.

^[19] Asiri Abubakar, Bangsa Sug, Sabah and Sulus’ Quest for Peace and Autonomy in Southern Philippines (Quezon City: University of the Philippines, 2000), 248.

^[20] Ibid., 265.

^[21] Tarling, Sulu and Sabah, 349.

^[22] Ibid., 349.

^[23] K.G. Tregonning, A History of Modern Sabah: 1881-1963 (London: Her Majesty’s Stationary Office, 1960), 68.

^[24] Ariff, The Philippine Claim to Sabah, 34, 37.

^[25] Ibid., 64.

^[26] Leifer, The Philippine Claim to Sabah, 1.

^[27] Miriam Defensor-Santiago, “Sabah Issue In International Law,” News, Philippine Daily Inquirer, March 23, 2013, http://opinion.inquirer.net/49361/sabah-issue-in-international-law.

^[28] Najeeb M. Saleeby, The History of Sulu (Manila: Filipiniana Book Guild, 1963), 125.

^[29] Peter Gowing, Mosque and Moros: A Study of Muslim in the Philippines (Manila: Philippine Federation of Christian Churches, 1964), 122-23.

^[30] Elizabeth C. Hassell, “The Shri-Vijayan and Madjapahit Empire,” Philippine Social Science and Humanities Review, Vol, 16, Iss. 1, March 1953, 3-86.

^[31] W. H. Treacher, British Borneo: Sketches of Brunai, Sarawak, Labuan, and North Borneo (Singapore: Govt. print. dept, 1891), 5. Stable Url http://archive.org/stream/yonderyo00gavarich/yonderyo00gavarich_djvu.txt.

^[31]

^[32] Official Gazette of the Republic of the Philippines, “The Earl of Derby to Lord Odo Russell,” January 1876, http://www.gov.ph/1876/01/17/philippine-claim-to-north-borneo-vol-i-the-earl-of-derby-to-lord-odo-russell/.

^[33] The Rajah of Sarawak, Sir James Brooke, KCB, LL.D (29 April 1803 – 11 June 1868) was a British statesman. His father Thomas Brooke was English; his mother Anna Maria was born in Hertfordshire, England, the daughter of Scottish peer Colonel William Stuart, 9th Lord Blantyre, by his mistress Harriott Teasdale. James Brooke was born in Secrore, a suburb of Benares, India.

^[34] Steven Runciman, The White Rajahs: a History of Sarawak from 1841 to 1946 (Cambridge:  Cambridge University Press, 1960), 73, 182.

^[35] J. Hunt Esq., “Sketch of Borneo, or Pulo Kalamantan.” The Expedition to Borneo of HMS Dido. Vol. II (London: Chappan  and Hall, 1846),  xxiii.

^[36] K.G. Tregonning, A History of Modern Sabah, 1881-1963 (Kuala Lumpur: University of Malaya Press, 1965), 13-14.

^[37] Official Gazette of the Republic of the Philippines, “Letter of Francis B. Harrison to Vice President and Secretary of Foreign Affairs Elpidio Quirino,” February 27, 1947, http://www.gov.ph/1947/02/27/letter-of-francis-b-harrison-to-vice-president-and-secretary-of-foreign-affairs-elpidio-quirino/. Mr. Harrison was a former United States Governor-General of the Philippine Islands. He served as Special Adviser on Foreign Affairs to President Manuel A. Roxas.

^[38] Ibid., 14.

^[39] Tregonning, A History of Modern Sabah, 16.

^[40] Mujamad Dehamalul Alam, “Friendly Letter from Our Brother the Paduca Majarasi Maulana Sultan Mujamad Dehamalul Alam Addressed to His Brother His Excellency the Governor Captain-General of the Philippines,” July 4, 1878, http://www.gov.ph/1878/07/04/philippine-claim-to-north-borneo-vol-i-friendly-letter-from-our-brother-the-paduca-majarasi-maulana-sultan-mujamad-dehamalul-alam-addressed-to-his-brother-his-excellency-the-governor-captain-genera/.

^[41] Ibid.

^[42] Official Gazette of the Republic of the Philippines, “II. Statement at the Opening Meeting of the British-Philippine Talks,” January 28, 1963, http://www.gov.ph/1963/01/28/philippine-claim-to-north-borneo-vol-i-ii-statement-at-the-opening-meeting-of-the-british-philippine-talks/.

^[43] Nestor M. Nisperos, Philippine Foreign Policy on the North Borneo Question (Pittsburg: University of Pittsburgh Press, 1969), 134.

^[44] Ibid.

^[45] Ibid.

^[46] Official Gazette of the Republic of the Philippines, “Earl Granville to Mr. Morier,” January 7, 1882, http://www.gov.ph/1882/01/07/philippine-claim-to-north-borneo-vol-i-earl-granville-to-mr-morier/.

^[47] Official Gazette of the Republic of the Philippines, “Statement and Application Addressed to the Marquis of Salisbury, K. G., Secretary of State for Foreign Affairs, &c., &c., &c., by the Undersigned, on Behalf of Themselves and Their Associates,” December 2, 1878, http://www.gov.ph/1878/12/02/philippine-claim-to-north-borneo-vol-i-statement-and-application-addressed-to-the-marquis-of-salisbury-k-g-secretary-of-state-for-foreign-affairs-c-c-c-by-the-undersigned-on-behalf-o/.

^[48]  Official Gazette of the Republic of the Philippines, “Letter of Francis B. Harrison to Vice President and Secretary of Foreign Affairs Elpidio Quirino,” February 27, 1947, http://www.gov.ph/1947/02/27/letter-of-francis-b-harrison-to-vice-president-and-secretary-of-foreign-affairs-elpidio-quirino/.

^[49] Tregonning, A History of Modern Sabah: 1881-1963, 22.

^[50] University of the Philippines, The Philippine Claim to a Portion of North Borneo: Materials and Documents (Diliman, Quezon City, Philippines: Institute of International Legal Studies, University of the Philippines Law Center, 2003), 287.

^[51] Ibid.

^[52] “Charles Frederick Cunningham Macaskie (1888-1969) was called to the bar through Gray's Inn, entered North Borneo in 1910 and served in the First World War in the Royal West Kent Regiment. He was Chief Justice and Deputy Governor, North Borneo, 1934-1945, Brigadier and Chief Civil Affairs Officer, British North Borneo, 1945-1946 and Commissioner for War Damage Claims, Borneo Territories, 1947-1951. He held the position of Acting British Judge, New Hebrides in 1955, 1958 and 1959. 1n 1946 he married D. Cole-Adams, daughter of W.H. Legg.” Source: Frederick C. Macaskie, “Papers of Charles Frederick C. Macaskie” (University of Oxford: Bodleian Library of Commonwealth & African Studies at Rhodes House, February 28, 2012), http://www.bodley.ox.ac.uk/dept/scwmss/wmss/online/blcas/macaskie-cfc.html.

^[53] Rodolfo C. Severino, Where in the World Is the Philippines? Debating Its National Territory (Singapore: Institute of Southeast Asian Studies, 2011), 62.

^[54] Official Gazette of the Republic of the Philippines, “Letter of Francis B. Harrison to Vice President and Secretary of Foreign Affairs Elpidio Quirino,” February 27, 1947, http://www.gov.ph/1947/02/27/letter-of-francis-b-harrison-to-vice-president-and-secretary-of-foreign-affairs-elpidio-quirino/.

^[55] Ibid.

^[56] Ibid.